Carawan v. Barnett, (No. 183.)

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK SON, J
• Citation: Carawan v. Barnett, 197 N. C. 511, 149 S. E. 740 (N.C. 1929)
• Decision Date: 09 October 1929
• Docket Number: (No. 183.)
• Parties: CARAWAN et al. v. BARNETT.

(197 N.C. 611)

149 S.E. 740

CARAWAN et al.

v.BARNETT.

(No. 183.)

Supreme Court of North Carolina.

Oct. 9, 1929.

Appeal from Superior Court, Pamlico County; Daniels, Judge.

Action by C. G. Carawan, executor of the last will and testament of Monetary Delamar, and others, against Hortense Barnett. Decree for defendant, and plaintiffs appeal. Affirmed.

Z.V. Rawls, of Bayboro,, for appellants.

Ward & Ward, of Newbern, for appellee.

CLARK SON, J. The only question involved is whether or not a street assessment on a particular piece of land or lot abutting on a street in a municipality, duly and properly made according to law, should be paid by the personal representative of the party whose piece of land or lot is assessed, or out of the land or lot. We think the land or lot bears the burden of the street assessment.

After alleging the facts, "the petitioners pray the Court for its direction as to the payment of the balance due on said street assessment, which balance, to date is $167.87 with interest." Trust Co. v. Stevenson, 196 N. C. 29, 144 S. E. 370.

The will of Monetary Delamar was made and executed on January 14, 1927. After her death, C. G. Carawan duly qualified as ad-ministrator of her last will and testament and entered upon the discharge of his duties. The necessary items of the will of Monetary Delamar for the decision of this action are as follows:

"Item 2. I give and bequeath to my beloved daughter in law, Winnie Delamar my house and lot in the Town of Oriental where I reside, to have and to hold during her natural life, at her death to be sold, the proceeds to go to the Methodist Orphanage, at Raleigh, N. C, " etc.

"Item 3. I give and bequeath to my beloved sister Hortense Barnett all my wearing apparel and all money and all notes due me and a watch which was my mother's."

Prior to Monetary Delamar's death, there had been, according to law, a street assessment on the house and lot devised to her daughter-in-law, Winnie Delamar, during her natural life and at her death to be sold and the proceeds to go to the Methodist Orphanage at Raleigh, N. C, by the town of Oriental. The assessment by the town of Oriental was confirmed on March 28, 1927, and the amount of the assessment was $186.52. From confirmation the assessment-became a lien superior to all other Hens and incumbrances on the land. C. S. § 2713. The testatrix, Monetary Delamar, had the option to pay same either in cash or on the 10 equal annual installment plan, as she desired. C. S. § 2716. Prior to her death she paid, on April 28, 1927, one-tenth, being $18.65, leaving a balance of $167.87 to be paid on the installment plan.

In Morganton v, Avery, 179 N. C. 551, 103 S. E. 138, speaking to the subject, it is said: "The assessment is not a personal liability of the defendant, and could not be collected out of her personalty by execution. It is a liability created solely by statute, and does not arise ex contractu. It is not a personal liability of the owner of the land to be collected by execution; it is a statutory charge upon the land itself, and must be collected by proceedings in rem in a court having equitable jurisdiction unless some other legal method is provided by the statute. If the land benefited is insufficient in value to pay the assessment in full, the remainder cannot be collected out of the other estate of the landowner. Canal Co. v. Whitley, 172 N. C. 102, 90 S. E. 1; Commissioners v. Sparks 103 S. E. 142, this term; Raleigh v. Peace, 110 N. C. 32, 14 S. E. 521, 17 L. R. A. 330." Pate v. Banks, 178 N. C. 139, 100 S. E. 251. Assessment not collected out of other property of delinquent, see C. S. § 5362.

In R. R. v. Ahoskie, 192 N. C. at pages 259, 260, 134 S. E. 653, 654, it is said: "An assessment, 'as distinguished from other kinds of taxation, are those special and local impositions upon the property in the Immediate vicinity of municipal Improvements which are necessary to pay for the improvement, and are laid with...